Web designer sued for using images without permission

Antiquesportfolio.com argued that due to the infringement it was entitled to refuse to pay for work carried out by Rodney Fitch & Company, and that it was entitled to a refund of sums already paid to the designers. Antiquesportfolio.com also sought damages which included a payment to new designers to cover the cost of them altering the web site.

In siding with Antiquesportfolio.com, the court said that although there was no express term in the contract relating to the specific circumstances, an implied term existed whereby the web site designers were under a duty to carry out the design work with reasonable skill and care. This included not copying material from a third party where that material may be subject to copyright.

Also, the court said there was an implied obligation to ensure that work undertaken would have been fit for the purpose for which it was commissioned. It should therefore not contain potentially infringing material.

The case highlights the importance of making reference in a development contract to use of third party works. In this case, the judge accepted the existence of an implied term for the designer to use reasonable care not to include works that were knowingly copied.

The designer should have told Antiquesportfolio.com that copied material had been used and should have obtained its consent to continue with its use. Antiquesportfolio.com could then have sought permission to use the material, otherwise it ran the risk of being sued for copyright infringement.

Most designs and logos on the internet are subject to copyright and possibly trade mark rights and permission must be obtained before they can be reproduced. Copyright has no procedural requirements for registration. So long as a piece of work is original, or the person making it has exerted a degree of time, skill, and labour in producing it, then the material is copyright protected upon inception. There is no requirement to use the copyright symbol  for there to be protection. Accordingly, if the symbol is not used, this does not mean the work is free of copyright.